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Children’s involvement in family law

By June 18, 2018October 26th, 2021No Comments

So much of family law revolves around children that it only makes sense for the family law system to be keenly attuned to the needs of children during the process, not just their needs as to outcomes. The topic of children’s involvement in family law has been debated for years, and recently studies have provided clear direction for family law reformers as to how to improve kids’ experience of family law proceedings.

We recently mentioned new research funded by Legal Aid NSW which assessed children’s understanding and experiences of family law processes and found children are clear that they want the processes and key roles of players better explained to them. Now, Canadian scholars have synthesised the results of 35 qualitative studies conducted in 11 countries with over 1325 subjects and have provided an insight into children’s involvement in family law decision-making processes and whether their voices are heard, and how, when parents separate.  

Similarly to the Australian researchers, they found that “children want to be included in the processes that craft parenting plans for their care after separation. Children want to be consulted to be acknowledged, to exercise personal autonomy and to be better informed about the decisions being made. They do not want to have to choose between their parents but instead provide input on the arrangements made for their day-to-day care, believing that their involvement would lead to ‘more informed decision-making and better outcomes.’ Children prefer to be involved in the decision-making process early on, including at their parents’ decision to separate”.

Among the findings about children’s involvement in family law, this is interesting regarding judges:

Most children did want to be able to speak to the judge if they wished. Children said being heard by the judge would ensure the judge didn’t misunderstand their views and that it was important to meet the person who would be making decisions about their futures, provide their input and be acknowledged. Reasons for not wanting to speak to the judge included believing that it was unnecessary, preferring to deal with family issues within the family and feeling scared by speaking to the judge. However, children do want to be heard, “whether their participation was through a lawyer, mental health professional or a judicial interview.”

If Australian children are anything like the children in the 11 countries the studies examined, they too would likely share similar views. Here, in fact, direct engagement of children with judges has been argued to be beneficial, although few judges wish to speak to children in chambers at present. It’s been said that this is partly because the judiciary does not regard itself as being as qualified in child interviewing in the same way that other child experts are.  And yet in the current environment of Australian family court structural reform, it seems possible that families may in future face less specialised judges in their hearings, potentially judges still less experienced in child conferences than before.

On the other hand, the fact that children want to participate whether with a “lawyer, mental health professional or a judicial interview” means that given appropriately trained alternatives to a child-conferencing judiciary, their voices should still be able to be better heard.

Read more: The Lawyers Daily

You might also like to read our previous blog on children’s involvement in family law proceedings.

To discuss your family law issue with an experienced family law solicitor, please contact Canberra family lawyer Cristina Huesch or one of our other solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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